Opinion
No. 12–P–978.
2012-11-6
INDEPENDENCE SEAPORT MUSEUM v. John CARTER & another.
By the Court (GRAHAM, VUONO & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1: 28
This is the third appeal filed by the defendant, John Carter, pro se, seeking to overturn a $2.4 million default judgment awarded to the plaintiff, Independence Seaport Museum (museum), on its complaint arising from the defendant's embezzlement of funds while serving as the museum's president. After the museum's motion for summary judgment was allowed in December, 2008, the defendant filed a timely appeal. On April 15, 2010, this court affirmed the judgment, 76 Mass.App.Ct. 1125 (2010), largely on the basis of procedural deficiencies in the defendant's appellate submissions.
While the defendant's initial appeal was pending, he filed a motion to vacate the judgment pursuant to Mass.R.Civ.P. 60(b)(3), 365 Mass. 828–829 (1974) (fraud, misrepresentation) on December 28, 2009, more than one year after the judgment had entered. That motion was denied by a Superior Court judge on the ground that it was not timely filed. See Owens v. Mukeni, 448 Mass. 66, 74–75 (2006) (motion must be filed in a timely manner). The judge further noted that the defendant failed to provide an affidavit supporting his broad allegations of fraud. The defendant appealed, and, on November 1, 2011, this court affirmed in an unpublished decision, 80 Mass.App.Ct. 1113 (2011). Thereafter, the defendant filed another motion to vacate the judgment, this time pursuant to Mass.R.Civ.P. 60(b)(4), 365 Mass. 864–865 (1974) (void judgment). The motion was denied with the following endorsement: “Defendant's prior motion to vacate judgment was denied and said denial was affirmed on appeal.” It is the defendant's appeal from this order that is the subject of this appeal.
In the defendant's rule 60(b)(3) motion, he argued that his prior guilty plea in a related criminal matter did not conclusively establish liability in the civil proceedings; the court lacked jurisdiction “in a strictly federal issue and granted additional restitution to [the plaintiff] while the appeal was docketed in the Appeals Court”; and the judge erred as matter of law in granting the plaintiff's motion for summary judgment.
See Pina v. McGill Dev. Corp., 388 Mass. 159, 165 (1983)(fraud will not be presumed).
In this appeal, which is nearly identical to his rule 60(b)(4) motion filed below, the defendant again asserts that the Superior Court lacked jurisdiction to render summary judgment because some aspect of the case concerned retirement funds, and the Federal statute, ERISA, preempts State court jurisdiction. This same issue was raised in the defendant's prior appeals, as well as in his prior motion to vacate the judgment. Although the prior decisions may not have specifically addressed this issue, it has been presumptively rejected. Moreover, the motion was not brought within a reasonable time, having been filed nearly three years after the original judgment and only after an appeal from a prior rule 60(b) motion had been resolved.
As noted in the brief filed by the plaintiff, the defendant's brief and appendix fail to provide the court with relevant portions of the record as required by Mass.R.A.P. 18, as amended, 428 Mass. 1601 (1998).
It is well settled that denial of a rule 60(b) motion will be set aside only on a showing of a clear abuse of discretion. Berube v. McKesson Wine & Spirits Co., 7 Mass. 426, 433 (1979).
Finally, we address the plaintiff's request for appellate attorney's fees and for double costs. We are of the opinion that the motion, which largely repeats earlier arguments made by the defendant, borders on being frivolous and, although we deny the request for appellate attorney's fees, we allow the request for double cost.
Conclusion. The order denying the defendant's motion to vacate the judgment is affirmed, and the plaintiff's request for double costs is allowed.
So ordered.